People v. Schwartz

Appeal from an order of the Niagara County Court (Sara Sheldon, J.), dated November 10, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). County Court determined that defendant was a presumptive level three risk by applying the automatic override for a psychological abnormality “that decreases his ability to control impulsive sexual behavior” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]), and then granted him a downward departure to a level two risk. Contrary to defendant’s contention, the court’s conclusion that the override applies based on his diagnosis of pedophilia is supported by clear and convincing evidence (see People v Cobb, 141 AD3d 1174 , 1175 [2016]; People v Ledbetter, 82 AD3d 858 , 858 [2011], lv denied 17 NY3d 702 [2011]; see generally People v Andrychuk, 38 AD3d 1242 , 1243-1244 [2007], lv denied 8 NY3d 816 [2007]). We also reject defendant’s contention that the court abused its

Present—Whalen, P.J., Smith, Peradotto, NeMoyer and Scudder, JJ.